US Solicitor General D. John Sauer made a preposterous claim earlier this month in a letter to the US Court of Appeals for the Federal Circuit, where one of the legal challenges to the Trump administration’s tariffs is pending.
He wrote that a year ago, the US “was a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again.”
Sauer’s willingness to use legal filings in this way should deprive him of the deference that has traditionally been accorded to his office.
The Solicitor General represents the federal government before the US Supreme Court and has certain responsibilities in connection with the government’s litigation in the lower courts. The job has been referred to as the 10th Justice because of the high court’s special regard for the position and for the exemplary manner in which Sauer’s predecessors have exercised their responsibilities.
As a result of this special status, the Supreme Court has accorded a certain measure of deference to the Solicitor General. Sauer has now shown that he is no longer worthy of it.
The legal rule authorizing letters like the one Sauer filed permits parties to share with the court “pertinent and significant authorities” that have “come to a party’s attention after the party’s brief has been filed.”
Sauer doesn’t cite any such authorities, and it’s doubtful that he could have done so in a credible way because the consensus of respected economists across the political spectrum is that tariffs are detrimental to the economy.
Neither does Sauer attribute this view to President Donald Trump, as he does to other claims in the same letter: “[T]he President believes that a forced dissolution of the agreements could lead to a 1929-style result” and that “the economic consequences would be ruinous.”
While that claim is equally preposterous, at least Sauer is making clear that it’s Trump’s, not his own—that it’s a political assertion by a political actor. The fact that Sauer’s personal view is that the US was “a dead country” last year but that it’s now “strong, financially viable, and respected” is the only conceivable authority being transmitted to the court.
The personal views of a lawyer representing a client aren’t a relevant authority for the purposes of the rule under which the letter was filed. But that’s the least of the problems with Sauer’s actions. The choice of using legal filings to advance outlandish positions is the primary issue.
In one sense, the claim in Sauer’s letter is innocuous. Because it’s so obviously outrageous, no court is likely to rely on it. But the problem is that Sauer makes such statements in areas in which the Supreme Court is less able to ascertain the claim’s validity.
For example, during the last few months, in several emergency applications asking the Supreme Court to set aside lower court injunctions, Sauer made repeated references to threats to national security. While the government’s claims, like those of all litigants, are entitled to careful and deliberate consideration, Sauer should no longer be given the special status that his predecessors enjoyed.
A few months ago, Jack Goldsmith, the Harvard law professor who served in a senior Justice Department position under former President George W. Bush, noted Sauer’s dilemma: He “will lose the benefits that accrue to the government if the Court cannot trust him” but he “will be under pressure to kowtow to the White House and to the president in particular—in legal arguments, factual representations, and tone.”
Sauer has now resolved the dilemma and decided to “kowtow.” The consequences—losing “the benefits that accrue to the government”—should follow.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Author Information
Richard L. Revesz is a law professor and dean emeritus at the New York University School of Law. He filed a friend-of-the-court brief in the tariff litigation at the Federal Circuit.
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